Hatton v. Ontario (Community Safety and Correctional Services), 2011 HRTO 767

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Joshua Hatton

Applicant

• and-

Her Majesty the Queen in the Right of Ontario as represented by the Minister of Community Safety and Correctional Services

and Lou Ann Lucier

Respondents

INTERIM decision

Adjudicator: Ena Chadha

Date: April 19, 2011

Citation: 2011 HRTO 767

Indexed as: Hatton v. Ontario (Community Safety and Correctional Services)

1The applicant filed an Application under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”) on December 29, 2010, alleging discrimination with respect to employment on the disability.

2The applicant’s materials indicate that the applicant’s union, OPSEU Local 369, represents him with respect to a number of grievances regarding his workplace concerns.

3On April 5, 2011, the respondents filed their Response requesting that the Tribunal defer the Application pending the resolution of the applicant’s various grievances, as well as a Workplace Discrimination and Harassment Prevention Policy (“WDHP”) complaint. The respondents indicate that the applicant has approximately ten grievances regarding matters related to the allegations contained in his Application and that the applicant has a lengthy WDHP complaint which is in the process of being investigated. The respondents have confirmed the proper name of the institutional respondent and the style of cause is amended to reflect the same.

4The applicant filed a Reply on April 11, 2011 and indicates that he agrees to defer the Application; however, his agreement is conditional on a number of matters. The applicant asks that the respondents agree to postpone discipline and agree to a speedy mediation.

REQUEST TO DEFER

5The Tribunal will generally defer an application where there is an on-going grievance under a collective agreement based on the same facts and human rights issues. See Blackman v. Ontario (Community Safety and Correctional Services), 2009 HRTO 970 at para. 5. In explaining this approach, the Tribunal has referred to the fact that the Supreme Court of Canada has affirmed that grievance arbitrators have not only the power but also the responsibility to implement and enforce the substantive rights and obligations of human rights as if they were part of the collective agreement: Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42. Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, therefore raising the possibility of inconsistent decisions on facts or law.

6Based on the materials filed with the Tribunal, it appears that there is a number of outstanding grievances related to the issues of alleged poisoned work environment and alleged failure to accommodated as raised in the Application and that at least one grievance, if not more, has been referred to the arbitration process before the Grievance Settlement Board.

7Given the possibility of concurrent proceedings and inconsistent findings of fact and law, the Tribunal finds that the most fair, just and expeditious approach is to defer consideration of this Application in these circumstances

8The Tribunal orders the deferral of the Application pending the conclusion of the outstanding grievances. The Tribunal will not, as requested by the respondents, defer pending the conclusion of the WDHP complaint and will not impose conditions on the deferral as requested by the applicant.

9Where a party wishes to proceed with an application which has been deferred, the party must make a Request for an Order During Proceedings in accordance with Rule 19 within 60 days after the conclusion of the other proceeding (Rules 14.3 and 14.4).

10I am not seized of this matter.